Citation Nr: 0618463
Decision Date: 06/23/06 Archive Date: 06/30/06
DOCKET NO. 03-36 572 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to an increased rating for postoperative
lumbar discectomy, right L4-L5, with limitation of motion of
the lumbosacral spine, currently evaluated as 40 percent
disabling.
2. Entitlement to service connection for a right ankle
disorder.
3. Entitlement to service connection for a gastrointestinal
reflux disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
David S. Ames, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1985 to October
1987.
This matter comes properly before the Board of Veterans'
Appeals (Board) on appeal from a rating decision by the
Department of Veterans Affairs (VA) Regional office in
Detroit, Michigan (RO).
The appeal is remanded to the RO via the Appeals Management
Center, in Washington, DC. VA will notify you if further
action is required on your part.
REMAND
The veteran seeks an increased rating for postoperative
lumbar discectomy, right L4-L5, with limitation of motion of
the lumbosacral spine, currently evaluated as 40 percent
disabling, and service connection for a right ankle disorder
and a gastrointestinal reflux disorder.
In this case, the veteran's service medical records do not
show clinical evidence of a right ankle disorder or
gastrointestinal reflux disease at any time during active
duty service. However, she claims these disorders are
secondary to her service-connected back disability. Service
connection may be established on a secondary basis for a
disability which is shown to be proximately due to or the
result of a service connected disease or injury. 38 C.F.R. §
3.310(a). Establishing service connection on a secondary
basis requires evidence sufficient to show (1) that a current
disability exists and (2) that the current disability was
either (a) caused by a service connected disability or (b)
aggravated by a service connected disability. Id.; Allen v.
Brown, 7 Vet. App. 439, 488 (1995) (en banc).
VA outpatient examination reports from January and September
2000 note that the veteran reported pain and tightness in her
hips, particularly in the right leg. A May 2001 VA medical
examination stated that the veteran sprained her right ankle.
The January 2000 VA outpatient examination report also
diagnosed gastroesophageal reflux disorder.
The veteran was scheduled for a medical examination in
October 2002 to determine the presence, severity, and
etiology of the claimed disorders. The record shows that the
examination was cancelled because the veteran withdrew her
claim. However, there is no evidence of record from the
veteran that she ever withdrew her claim. In the January
2003 notice of disagreement, the veteran stated that she had
cancelled the examination due to an emergency surgery, and
requested that another examination be scheduled. The record
shows that no subsequent examination was ever provided.
Accordingly, the case is remanded for the following actions:
1. The RO must provide notice as
required by Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
2. The veteran must be afforded VA
examination(s) to determine the current
extent of the service-connected back
disorder and to determine the etiology of
any ankle disorder or gastrointestinal
reflux disorder found. The claims file
must be made available to and reviewed by
the examiner in conjunction with the
examination. All pertinent
symptomatology and findings should be
reported in detail. Any indicated
diagnostic tests and studies, including
x-rays, should be accomplished. The
examiner should review the results of any
testing prior to completion of the
report.
The report of examination should be
comprehensive and include a detailed
account of all manifestations of back
pathology found to be present. In
particular, the examiner should report
any functional limitation found and range
of motion expressed in degrees, with
standard ranges provided for comparison
purposes, should be accomplished. The
examiner must also address whether there
is ankylosis; sciatic neuropathy;
Goldthwaite's sign; muscle spasm;
guarding; abnormal gait; abnormal spinal
contour or listing of the spine; and/or
localized tenderness. The examiner
should also render specific findings as
to whether during the examination, there
is objective evidence of pain on motion,
weakness, excess fatigability, and/or
incoordination associated with the
veteran's service-connected back
disorder.
In addition, following a review of the
service and post-service medical records,
the examiner must state whether any ankle
disorder or gastrointestinal reflux
disorder is related to the veteran's
active duty service or is due to or
aggravated by any symptoms or
manifestations of her service-connected
back disability. A complete rationale
for all opinions must be provided. The
report prepared must be typed.
3. The RO must notify the veteran that
it is her responsibility to report for
any VA examination scheduled, and to
cooperate in the development of the
claim. The consequences for failure to
report for a VA examination without good
cause may include denial of the claim.
38 C.F.R. §§ 3.158, 3.655 (2005). In the
event that the veteran does not report
for the aforementioned examination,
documentation must be obtained and
associated with the claims file which
shows that notice scheduling the
examination was sent to the last known
address. It must also be indicated
whether any notice that was sent was
returned as undeliverable.
4. Thereafter, the RO must re-adjudicate
the claims on appeal. If any benefit on
appeal remains denied, a supplemental
statement of the case must be issued, and
the veteran and her representative must
be afforded an opportunity to respond.
The case must then be returned to the
Board for appellate review.
No action is required by the veteran until she receives
further notice; however, she may present additional evidence
or argument while the case is in remand status at the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
_________________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38
C.F.R. § 20.1100(b) (2005).